When I told colleagues that, if I were ever charged with rape, I would love to have Jacob Zuma’s advocate, Kemp J Kemp, as my lawyer, I was met with derisory comments.
I want to believe that my colleagues think of me as upright enough never to have to defend myself against such a heinous crime. But I know that I was supposed to have been ashamed to choose that particular man as my defender in what would be my darkest hour.
I partly blame Judge Bernard Ngoepe for this.
For it was he who set the scene when he decided that, ordinarily, he would have kicked out the application by Zuma to recuse him from hearing the latter’s rape trial but, because of political ramifications, he wouldn’t.
Civil society and some of my colleagues have followed suit in allowing for ideological considerations to colour the court process.
Kemp has become a villain in the Zuma soap opera. He is seen as the heartless hit man in this drama teeming with parental guidance, violence, nudity and for some, gratuitous sex scenes.
Having convinced Judge Willem van der Merwe that the sexual history of Zuma’s accuser — nicknamed Khwezi by her supporters — is relevant, Kemp has become the ultimate bad guy.
Diverse groups such as the politically correct, anti-women-abuse campaigners and Zuma’s political foes have one thing in common — they would have us believe that Kemp should be ashamed of himself for employing the strategy he has used in the defence of his client.
They conveniently ignore that Khwezi’s sexual history was not raised as a matter of course but that the judge heard arguments from both counsels before deciding he would allow her past to be part of the record.
Since the judge said he would not publicly make known the reasons for his judgement until after the trial, it is speculative at best and contemptuous at worst to suggest he was off his rocker for doing so.
Now Judge van der Merwe has unleashed the South African pastime of assuming that a judge who makes a decision that does not agree with one’s preferred outcome is either a relic from the past or purely incompetent.
Judging by the attacks on Kemp and his strategy, one would think he has acted illegally or unethically.
Kemp has a duty to his client and that duty is to ensure that Zuma is acquitted, failing which, he gets as light a sentence as possible. He does not have to like Zuma or his politics.
Was it moral for Kemp to raise the arguments he did? Perhaps not. Zuma might have been the head of the government moral- regeneration programme, but he is not in the Johannesburg High Court because the state accuses him of acting immorally. The state says he raped a young woman — a criminal offence as much as it is depraved.
Rape is no doubt a heinous crime. One might say it is more so than murder since one does not have to live with the trauma of having been murdered. Those found guilty of rape cannot be punished enough.
Zuma’s perceived effrontery outside court has not helped either.
But all that should not be Kemp’s business. Zuma has told his lawyers that he has been framed. That is the strategy Kemp is following. Khwezi says she has been raped and the state has done all it can to prove this.
Just as Khwezi’s sexual past was found admissible, Zuma’s friends should accept as inevitable when the shoe goes on the other foot and the state’s lawyers strip Msholozi naked on the witness stand. Such is the adversarial nature of court processes in South Africa. There has always been talk about whether such a system is best, but until that debate is settled, expect Kemp or any other lawyer representing an accused person to do all they can within the law to get their clients off, including casting doubt in the mind of a judge with regard to the credibility of any witness.
The politically correct rejoinder is to describe anyone who dares express the possibility that Khwezi is lying as a caveman or a rape apologist.
Those who say Zuma is lying run the risk of being called “Mbekites” or agents of the neo-liberal project.
Both ripostes miss the point.
They ignore the reality that there are some people languishing in jails who have been falsely accused and convicted for crimes they did not commit, including rape, just as there are some walking the streets freely when they have blood dripping from their hands.
Much as Khwezi has a right to have the state put its best case forward, Zuma equally has a right to a robust defence.
Anyone who has been inside Johannesburg High Court’s 4E courtroom will know that both counsels have been of full value to their principals.
Why then blame Kemp for doing what lawyers are contractually and ethically bound to do for their clients?